Posted
by
timothy
on Sunday May 01, 2011 @03:56PM
from the no-no-you-are-twisting-mein-woerter dept.

Halo1 writes "Last week, the European Commission published a rebuttal to an extensive and strongly condemning opinion document about ACTA by prominent European academics. Ante Wessels from the FFII went through the Commission's reply and discovered that after correcting the mistakes they made, they actually confirm the opinion they were trying to refute. The Commission primarily appears to suffer from a lack of reading comprehension, amnesia regarding what it said earlier, and not being fully aware of its competences."

In January 2011, prominent European academics issued an âoeOpinion of European Academics on Anti-Counterfeiting Trade Agreement [uni-hannover.de]â (ACTA). The academics invite the European institutions, in particular the European Parliament, and the national legislators and governments to withhold consent of ACTA, âoeâ¦as long as significant deviations from the EU acquis or serious concerns on fundamental rights, data protection, and a fair balance of interests are not properly addressedâ.

The Commission fails to make its point in a convincing way. The Commission shows a lack of basic reading skills, does not address points raised by the academics and fails to reason in a logical way. Regarding the border measures, the Commission actually agrees with the academics. The Parliament should ask the European Court of Justice an opinion on ACTA.

It is too much work to address all the flaws in the Commissionâ(TM)s notes. I will give some examples.

ACTAâ(TM)s damages are higher than EU lawâ(TM)s damages

The academics wrote: âoeSome of the factors mentioned at the end of the provision are not provided for in art. 13.1 Directive 2004/48. These factors should not be adopted in European law since they are not appropriate to measure the damage. âoeThe value of the infringed good or service, measured by the market price, [or] the suggested retail priceâ, as indicated in art. 9.1 ACTA, does not reflect the economic loss suffered by the right holder.â

The Commission states: âoeThere is no conflict between article 9 of ACTA and article 13 of Directive 2004/48/EC. Both provisions refer to ways in which courts can come to the determination of fair damages for the injured party.â

Damages in EU law are based on economic loss suffered by the right holder. The academics show that ACTA goes beyond that. The Commission just calls them both âoefairâ, and sees no difference. This is like saying: âoebig cars and small cars are both nice cars, so there is no difference.â But with cars and with damages, it is not only important both are cars or damages, the size is relevant as well. ACTA exceeds the level of damages in EU law. The Commission does not address the size aspect raised by the academics.

Bringing different things under the same category does not make them the same. Fines and death penalty are both deterrent, they are not the same.

Going beyond economic loss suffered by the right holder is not âoefairâ. It disproportionally hurts for instance startup companies in conflict with major patent holders. The Commission and ACTA advocate seeing damages based on retail price as âoefairâ. Unbalanced enforcement measures may heighten market entrance risks for innovators. Startup companies are often confronted with patent minefields. Even a mere allegation of infringement may easily lead to market exclusion. Startup companies often do not have enough resources to litigate. ACTA is biased against startup companies, the heightened damages hurt innovation.

The Commission states: âoeThe examples given in article 9.1 of ACTA and highlighted by the authors of the Opinion are not mandatory for the ACTA Parties (cf. the provision says âoemay includeâ).â

But this âoemayâ in article 9.1, is permissive towards the rights holders, it refers to âoeany legitimate measure of value the right holder submitsâ. Article 9.1 is not permissive towards the ACTA parti

so let's see. you are not a subscriber so no early views... yet you wrote up all of this complete with links in the 4 minutes that elapsed between the story's posting and the submission of your own post.

Every registered user can, after logging in, look at http://slashdot.org/firehose.pl [slashdot.org] (not the static page you get redirected to in case you're not logged in) and see all stories that are submitted.

yet you wrote up all of this complete with links in the 4 minutes that elapsed between the story's posting and the submission of your own post.

Actually, he simply posted the contents of the main article [ffii.org] referred to in the post, because the server hosting it has been slashdotted (I should have used an nyud.net link). And the reason he had a local copy is probably because he's on the same mailing lists as I am where the article was first announced.

Apparently the US was involved in drafting the NZ copyright laws, so it would not surprise me if it was linked to this EU Commision decision. The EU actually does remarkably well on making sound, ethical decisions when not interfered with. Not perfectly, true, but remarkably well (for politicians) nonetheless. When the EU makes obviously bad decisions that happen to duplicate bad decisions elsewhere, where those bad decisions were definitely made by the US, the US is the most likely suspect.

And as with every empire - the need to expand or crumble. But there is not much room left to expand into now. USA either controls through proxies (most of western Europe included) or more or less directly (Iraq, Afghanistan). The remains aren't really worth fighting about - like Libya and Sudan since they are going to cost a lot more than what is gained - or as in the case of China and Russia - they are too hard to chew down, especially now with the unbalanced US economy.

There was a nice Frenchman named Joseph-Ignace Guillotine who helped invent kinda the European analog of the U.S.'s 2nd Amendment. There are always issues with what constitutes civil society, but people proposing intellectual slavery should be reminded that less seemingly civil resolutions exist.

Brazil saved aids patients all over the world by breaking the patents on anti-retrovirals. If no country had been willing, then extra-legal lethal force could've very quickly become a civilized response.

And in the process doomed a large number of future patients when the pharmaceutical companies couldn't pay for the cost of producing future medications. I'm all for patent reform and affordable healthcare, but breaking patents on things like anti-retrovirals is a really great way to tell a pharmaceutical company to not bother looking into any treatments that are primarily affecting your citizens.

Anti-retrovirals are not cheap to develop, and unlike most types of medications definitely do get less effective

Profits, let's not forget they also spend more on advertising the drugs then they do on developing the drugs.
Hey, hmm, that advertising also pays for the production of much copyrighted content, TV, Radio, Newspaper, Magazine and even internet content.

Somehow I think it would be a whole lot cheaper to open source all drug development research and provide the details free.

As for other copyrighted content, when is enough, enough, there is already more out there that anybody in ten life times can watch, l

As I understand it, the problem was Brazilians couldn't pay the price requested, and the supplier didn't lower prices. So the Brazilians just copied it for themselves.

This seems sort of like the MPAA/RIAA thing - cd/dvd publishers charge prices people can't afford or are unwilling to pay, so people just copy it themselves. And the **AA wrings its hands and blames pirates for their demise, just as you are shilling for the pharmaceuticals.

Markets only work when there is competition. "Intellectual Property" is by definition a legal monopoly. And you won't find me crying for any business with a legal monopoly that can't break even. They deserve to die, both for their own ineptitude and for the sake of having a free (as in liberty) marketplace.

Before we can allow the medicine companies to die, we should have another plan for making new drugs. Some people have argued that this is a job for the government, but the infrastructure and institutions needed for this shift is not there. Before we are sure we have a new way of producing new drugs, it would be foolish to remove our old way.

US patent =/= Brazilian or even European patents. Patents are administered nationally, not internationally.
This means that nations will only grant and protect patents as long as they see a substantial benefit from doing so. Please remember that Intellectual Property is NOT a right but something that a nation has granted inventors in return for the inventors releasing their work and to encourage further investments into more inventions.

This is a careful balancing act because when the people/government fee

That there is precisely the problem. It costs billions typically to bring a new drug to market, after the research and trials are completed. Many medications don't even make it past trials. There are a couple ways of handling the cost, you can lower the safety and testing requirements to make it easier, and risk dangerous drugs being introduced at a higher rate or you can just pay labs to work on producing the medications and have them be produced immediately as generics by any pharmaceutical line willing t

Perhaps due to their comparative impacts. While Big Pharma may make sure you pay heavily for your drugs, they'll still do their job and stop you from dying. The products of the *IAA cannot be considered so essential.

Big Pharma gets here on Slashdot compared to the MPAA and RIAA, considering they're far more evil about both their goals and methods.

Let's see, Big Pharma has the goal of raking in money by producing medicine, MPAA and RIAA has the goal of raking in money by producing entertainment. Yes, I see, medicine is so much eviller than entertainment.

I'm not saying that their methods are any better, or that they exist to do good (they don't, but a large portion of the people working for them are in the business to help cure people), or don't lie about the effectiveness and side effects of their products (they certainly do, and should be punished

But if the medicine wouldn't exist without these companies, is it more evil to let the company go bankrupt, and stop it making new medicine?

Isn't that a false dichotomy? The fact is generic drugs are in use in many places, and yet pharmaceutical companies are still in great shape. Seems to me, let the countries who can afford the medicine pay, and look the other way when places that can't afford medicine go for generic copies. Far as I can see, medicines are being pirated, and medicines are still being made.

No matter how effective a medication might be in theory, if sick people can't afford it, it is useless. Not breaking the patents deprives sick people of access to current drugs in order to make sure there will be more magic drugs they also have no access to later. The net result is more suffering. Socking it to poor people with outrageous prices is like trying to squeeze blood from a stone.

I notice the pharmaceutical companies aren't exactly suffering in poverty.

That is true, however it's not really appropriate to force companies to sell their medications at a loss because people can't afford it. Which is the point, a lot of these second and third world countries are demanding prices which are below the cost of production, meaning that not only are these companies being expected to create medications for their problems, but pay for the treatments as well. And yes, by not paying the cost of development you can sell them for less, but that also means that nobody is w

Nobody relevant to this thread has forced or tried to force the drug companies to sell at a loss. Brazil gave the drug companies an effective right of first refusal for making those drugs at an affordable price. The drug companies declined, so Brazil manufactures the drugs themselves.

The drug companies lose NOTHING in this. The choice was between buying cheap knock-off drugs or none at all. The money for the expensive patented drugs does not exist and so isn't up for grabs.

And in the process doomed a large number of future patients when the pharmaceutical companies couldn't pay for the cost of producing future medications.

Please don't tell me you believe this tripe. I have worked for some of these companies. Public money makes up the vast majority of the cost of at least the level 2 and 3 trials. They charge an arm and a leg "to recover costs" that you already paid as tax. And because they can. The idea that you can use free market forces for medicine is psychotic.

Brazil didn't break patents, they used a paragraph of Brazilian copyright law that under certain circumstances allows the government to grant a production permission to a local company without the consent of the rights holder.
Such an exception "to protect public health, including medicine for all" is specifically allowed in TRIPS and the UN has several times reaffirmed that access to AIDS medication is an essential human right, the latest vote was unanimous with the exception of the United States which abs

One can only "paint oneself into a corner" if there are any likely consequences for whatever it is that one has just done. Given that supporting or not supporting ACTA is pretty much entirely a matter of which master you are serving, the EC could have just had an intern hammer out a couple of pages of Lorum Ipsum, change the font to Zapf Dingbats, and print it up. As it is, they kindly went to the trouble of regurgitating nonsense that bears a substantial resemblance to a natural-language argument. Polite;

You can bet that they did not post a reply out of politeness, but rather because they felt it was somehow required. That opinion by the academics was getting quoted all over the place and thrown at them at pretty much every opportunity.

The fact that their rebuttal contains several factual errors is very handy and in fact probably will have consequences in the further debate (because it can be used by members of the European Parliament that are critical of ACTA, and also in national political debates). Obvio

Things which are common knowledge to the site's readers should not have to be summarized. Just because you haven't read/. at all in the last five years doesn't mean anyone else was confused. Should they have to explain what the EU Commission is too? Or the Pentagon? After all, a story about military spending controlled by a five-sided polygon seems mighty strange.

No surprise here... they are always trying to find the magic words support something to dupe the public.

You CAN FOOL MOST of the people MOST of the TIME! I live in the US and the only choice is a demtard or a repuke due to mass stupidity. They both are corrupt to the core but people keep voting them in anyways. Proof you can fool most of the people most of the time! It seems that the only game in town is which politician can lie the biggest and get away with it!

No, they suffer from wanting to justify something they're not actually able to justify.

This is exactly I was thinking about. Whining about lack of comprehension, amnesia etc. does not make sense.

What IMO makes sense is looking who bribed them, was this bribing legal and are we able to make them liable for corruption.

No, that does not make sense. Most likely no bribing whatsoever was involved. The people working on this are most likely simply "captives" of the system. Not in the sense that they are being blackmailed, but simply that they are so deeply embedded in that world that they honestly cannot imagine how having more and harsher enforcement of any kind of "intellectual property rights" can be bad in the grand scheme of things. Of course, with an ex-IFPI lobbyist now being responsible for ACTA at the European Commi [wordpress.com]

It is for these reasons that the Commission has stated on a number of occasions thatACTA is indeed fully in line with the relevant EU acquis. It will neither require changes2 to that acquis, nor lead to different interpretations or implementation of existing EUlegislation.

I hate the undemocratic EC, and the way that they are not elected by the people they are supposed to serve.There should have been a provision in the Lisbon Referendum to allow EU citizens to vote in their commissioner.

The Americans suffered with a similar issue. Their solution was to proudly boast that their country was not a democracy rather than being upset about it. After all, if it were a democracy it would be a Tyranny of the Majority. Instead they are the opposite and only alternative option: That Which Must Not Be Spoken. But they're still totally democratic, make no mistake. They have polls and everything.

The Commissioners are recommended by the elected governments of the member states and chosen by the elected European parliament. They are as 'undemocratic' as, for example, the head of the UK's civil service. If you are unhappy with the way the EU is run then I hope you have been voting for a candidate that will do something about it, and not just being like a lot of the people here in the UK who go on endlessly about the evils of the EU but can't be bothered to get off their backsides and go to a polling

This is not THE EU, that is European Commission TRADE negotiators trying to lie, bent the rules and circumvent the European Parliament. Trade people are special personal and totally ruthless.
Oh, and by the way, here is the phone number [europa.eu] of Pedro Velasco-Martins and here are the other guys [europa.eu].
Pedro Velasco-Martins here explains why they do ACTA [youtube.com].

Painted into a corner? What, like people expect government to actually keep its word anyway? It's impossible for a politician to "paint himself into a corner", he'll just wiggle and squirm his way out of it. If the European Commission decides to let itself be bound by this "fact", it's because it's what they wanted to do in the first place.

The fact checking around here is just atrocious. Where to begin? First of all, they're nuclear wessels, which is an important distinction I think, and second, they're from the Star Trek, not the Final Fantasy 2.